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Adopting after fertility treatment – a modern families solution to legal parenthood

Date:6 DEC 2019
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Family Solicitor

Adoption is most commonly understood to be a process where a person or couple assume care of an unknown child following a rigorous assessment either carried out by their Local Authority or local adoption agency. It is the legal mechanism that transfers legal parenthood and parental responsibility to the adopters and is intended to be the lifelong solution to secure permanency for the child.

But in what other situations is this legal process applicable?

With a rise in couples undergoing fertility treatment, both in and out of the UK, there are sometimes situations in which the law does not automatically recognise someone who is (and always intended to be) a parent as the child’s legal parent. The only solution to secure legal parenthood in some of those cases is a post-birth adoption order, the effect of which is to bring the legal position in line with everyone’s intentions at the point of conception.

As a team specialising in fertility and adoption law we regularly advise on these situations and it is important for family lawyers advising on cases like this to think outside the box to find legal solutions for parents creating families in different ways. The below case studies give a flavour of situations in which we commonly encounter. 

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Seeta – single mother

Background: Seeta is a 47 year old single woman and after years of unsuccessful fertility treatment she is considering a possible gestational surrogacy arrangement in the UK with the help of an unmarried surrogate, Jessica. Seeta will require the assistance of a sperm and egg donor to move forward with her plans and will be undergoing treatment at a licenced fertility clinic in Sheffield. Seeta would like to understand the legalities surrounding her plans and whether it is possible for her to be registered as her child’s sole legal parent despite the fact she will not be biologically related.

Legal parenthood : Jessica, as the person who gives birth, will be treated as the child’s legal mother and will automatically have parental responsibility. As she is unmarried, Jessica and Seeta should sign HFEA forms to nominate Seeta as the second legal parent (and these must be signed before embryo transfer takes place to be valid). If completed correctly, Seeta will be considered her child’s second legal parent upon birth and can be legitimately registered on the initial birth certificate as the second legal parent. However, this is not the desired outcome as Seeta would like a birth certificate which shows her as the sole legal parent.

Usual solution: The usual solution to extinguish a surrogate’s legal rights and to trigger the release of a new birth certificate is a post birth application for a parental order under s54 of the Human Fertilisation and Embryology Act 2008. However, in Seeta’s case this is not, unfortunately, an option available to her as she is not a biological parent and this is a mandatory criteria for the making of the order.

Alternative solution: In the absence of a parental order the only legal mechanism available to completely extinguish Jessica’s legal rights and responsibilities is an application for an adoption order – which would trigger the release of an adoption certificate in Seeta’s sole name. As this is not the intended solution post a surrogacy arrangement Seeta should be aware that her application will be regarded as unusual and will involve her giving detail about the surrogacy journey and any payments made and a mandatory local authority assessment.

An alternative is that Seeta could do nothing at all since she will be a legal parent upon birth and have parental responsibility if she is named on the initial birth certificate. The disadvantage of this would be that Jessica will remain the legal mother and will share financial responsibility with Seeta and this obviously leaves both parties vulnerable in future in respect of both financial and parenthood matters.

Should Seeta wish to move forward with her plans, it is imperative that she sets things up in the best possible way and put a surrogacy agreement in place with Jessica to ensure they are both clear about the terms of their arrangement. It would also be crucial for Jessica to seek legal advice particularly as the parental order is not available to Seeta post birth and therefore, there is a possibility that she will remain a joint parent with Seeta should she choose not to apply for an adoption order post birth. Both parties should also make sure they have Wills in place.

Michelle and Jenna – same-sex parents

Background: Michelle and Jenna are an unmarried/non-civilly partnered same-sex couple who live in the UK. Following IVF treatment at a clinic in Denmark Michelle falls pregnant using an embryo created with her own egg and a sperm donor. In advance of the birth Jenna would like to understand whether she can be legitimately named as her unborn child’s legal mother on the UK birth certificate. 

Legal parenthood: Michelle, as the birth and biological mother, will be treated as the legal mother and will automatically have parental responsibility. As Jenna and Michelle were neither married or civilly partnered at the time of their treatment, and because their treatment took place outside the UK, Jenna is not considered a legal parent and therefore cannot be legitimately be registered as such on her child’s birth certificate.

Solution: If Jenna wants to share legal parenthood as well as parental responsibility with Michelle, she should apply for a step-parent adoption to secure her legal parenthood post birth (although this will not enable her to be registered on the initial birth certificate). In Jenna’s circumstances she will be unable to formally make her court application until after her child has lived with her for six months but before then she should contact her Local Authority to formally notify them of her intentions to apply for an adoption order.   In the meantime, Michelle and Jenna should make sure they both have Wills in place (so that Jenna would acquire parental responsibility automatically if Michelle dies, and to ensure their child would inherit from Jenna) and there is also an option for Jenna to make a Child Arrangements ‘lives with’ application pending her adoption order. Should they marry, Jenna and Michelle also have the option to enter into a Step-Parent Parental Responsibility Agreement.  

Whilst Jenna’s step parent adoption application will be relatively straightforward, it would not have been necessary if she and Michelle had married in advance of their fertility treatment. Early legal advice is therefore always to be recommended.